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"Litigation is not an inexpensive proposition, but we felt we really needed to do this. If they're just going to send out compliance advisory letters and meet with them behind closed doors, that's not going to get us clean air."
That the Lamar plant has been fouling the skies in excess of what its permits allow is undisputed; the real question is how dirty it's been and whether continuing corrective actions will fix the problem. Preliminary tests last fall showed unexpectedly high particulate emissions; if the rate persisted when the plant was operating at full capacity, it would be spewing double the level its permit allows.
"The emissions of condensable particulate matter are far, far exceeding expected levels," Rigel wrote in an e-mail to a contractor, "and will constitute violation in terms of both mass emissions (tons per year) and the federal standard of total emissions."
In another e-mail last February, Rigel expressed "growing concern" over the plant's excessive nitrogen oxide emissions, which operators tried unsuccessfully to control by injecting more ammonia into the system. "We cannot continue to operate knowingly exceeding the NOx requirements as we are now," he wrote. "We must either reduce NOx very quickly or we will be forced to come off-line."
Based on data that ARPA is required to report to the EPA, Nichols believes the Lamar plant has violated emissions standards repeatedly since it commenced operations last year. A July letter from Nichols to Rigel and other plant operators, threatening a second lawsuit, asserts more than a thousand violations of the Clean Air Act, including a twelve-month output of NOx emissions that's almost triple what the permit allows, double the annual sodium dioxide limit, and particulate emissions well in excess of what's considered the "best available control technology" emission rate.
Rigel responds that Nichols is citing "replacement numbers" entered into the EPA database, "which are typically much higher than one would expect from actual test results." The numbers have recently been updated, he adds, with results from stack testing. "We are confident that if [state health officials] find exceedances, they will be vastly fewer than WildEarth Guardians alleges," he says.
Nichols is unimpressed. "When Rick says things like, 'We cannot continue to operate knowingly exceeding the NOx requirements as we are now,' we can't help but reach the conclusion that Lamar is covering up violations," he says. "That, or they failed to monitor and report their emissions correctly. Either way, something is seriously wrong at this plant."
He notes that the emissions data ARPA submitted to the state also shows ongoing violations of nitrogen oxide and sulfur dioxide limits — and that the plant's air-monitoring systems were frequently not operating.
"That's like driving a car without a speedometer and claiming that you were complying with the speed limit at all times," Nichols says. "They seem completely incapable of ensuring that this plant protects air quality at all times, which is intolerable."
Nichols envisions a day of reckoning when coal plants will be held accountable for their actual environmental toll. As he sees it, the investment that ARPA's members have made in their new power source has to be weighed against what it's going to cost them in a few years to bring it into compliance with tougher regulations and possible carbon taxes. "The liability for burning coal is going to become too great," he says. "I hope Lamar will recognize that this is a wagon they need to get off."
Colorado's own effort to rein in coal plants through legislation is a step in that direction, but hardly a revolutionary one. Xcel will spend less money on its conversion project than it would meeting emissions standards if it left all its coal plants in place. Coal interests have charged that the clean-air bill is actually a giveaway to the natural-gas industry and a windfall for Xcel, which plans to build its own gas plants and pass many of its costs on to consumers (see story, page 18).
Small, publicly owned utilities like Lamar's are in a different situation. Without stronger economic incentives for clean-energy alternatives — and natural gas is hardly "clean," except in comparison to coal — they have few options. Many are stuck riding the coal train until regulators or their own citizens stop them.
Recently, Cliff Warren was eyeing the grime on the sides of his house. He wanted to do something about it, but he also wanted to enjoy the sudden spell of peace that had descended on his neighborhood. For some unknown reason — cleaning, maintenance, testing, something — the power plant was strangely quiet.
"The last two days have been awesome," he says. "I'm ready to fire up the power washer and wash my house, but I don't want the noise."